Mahatma Gandhi once said, “Power is of two kinds. One is obtained by the fear of punishment and the other by acts of love. Power based on love is a thousand times more effective and permanent then the one derived from fear of punishment”.

Malaysia today is still in the midst of finding its character of justice. Will it disproportionately punish those who are guilty (Retributive approach), or will it take a more rehabilitative approach? In deliberating between these approaches, one critical question which must be answered is, “does heavy punishment lead to actual deterrence?”

Last week, the president of PAS tabled the amendment of the Syariah Courts (Criminal Jurisdiction) Act 1965, otherwise known as Act 355. The ‘3-6-5 safeguards’ provide that any offence punishable under the Syariah Courts is limited to a term of imprisonment not exceeding three years, or whipping of not more than six strokes, or fine of not more than RM5,000.

The proposed amendment intends to increase the amount of punishment which were previously limited by the ‘3-6-5 safeguards’.

It’s firstly important to understand that the amendment only looks at moral crimes which have been defined under the jurisdiction of the shariah courts (eg premarital sex/consuming alcohol). The increased punishment will not have any impact on the reduction of corruption, theft and robbery which fall under the Penal Code. This undercuts the purported efficacy of the ‘Hudud Bill’ claimed by its very proponents.

Since we’re looking at a limited set of wrongdoings, will the increase in punishment deter crimes?

It’s important to draw comparisons among states which have adopted a retributive system with those which have adopted a more rehabilitative style of justice.

Northern Nigeria, Iran and Pakistan apply a strong retributive justice system. Some will stone adulterers, chop the limbs of those who are guilty of stealing. They also heavily punish sexual offenders.

Yet, In Saudi Arabia, the number of crime cases reported by the Ministry of Justice was 22,113, a 102 percent increase over 2012. The WomanStats map that displayed the rape scale of each country in the world on a scale from one to five, ranked Saudi Arabia at four. This is exceptionally bad for a country which boasts having the harshest forms of punishments.

I do acknowledge that some would say that the United States record the highest level of rape in the world. According to the National Violence Against Women Survey, one in six US women and one in 33 US men has experienced an attempted or completed rape in their lifetime. However, The United States also places the death penalty/life imprisonment on rapists in some circumstances, yet the amount of rape cases didn’t decrease, but increased.

Debunking the myth

Similarly in India, the death penalty can be used against rapists, yet the amount of rapes steadily increased. This debunks the myth that an increase in punishment reduces the potentiality of the crime from taking place.

Let’s also note that the number of rape cases in Saudi is relatively low due to the systemic problems in its legal system. Victims of rapists often do not report to the police under the fear of being persecuted. Some are married off to their rapist. Marital rape is also not considered as a form of rape.

Human Rights Watch concluded that the rape victims are often punished when they speak out against the crime. In one case, the victim's sentence was doubled for speaking out; the court also harassed the victim’s lawyer, going so far as to confiscate his professional licence.

In 2009, the Saudi Gazette reported that a 23-year-old, unmarried woman was sentenced to one year in prison and 100 lashes for adultery. This woman had been gang-raped, became pregnant, and had tried (unsuccessfully) to abort the fetus. This therefore proves that Saudi Arabia’s retributive system isn’t the best of modules to use.

Let’s compare this to a more rehabilitative approach. The Netherlands doesn’t have the death penalty. It almost never imprisons its convicts for life, yet it has one of the lowest crime rates in the world. It prefers to rehabilitate and educate its prisoners than punish them. In 2016, five prisons had to close as falling crime rate leaves cells empty.

In Norway, fewer than 4,000 of the country’s 5 million people were behind bars as of August 2014.That makes Norway’s incarceration rate just 75 per 100,000 people, compared to 707 people for every 100,000 people in the US. On top of that, when criminals in Norway leave prison, they stay out. It has one of the lowest recidivism rates in the world at 20 percent. The US has one of the highest - 76.6 percent of prisoners are re-arrested within five years.

Norway adopts the rehabilitative style of justice. It doesn’t focus on increasing the amount of punishment when amending its criminal justice system.

In 1999, there was an analysis of over 50 studies (involving over 336,000 offenders), which showed that prison sentences do not decrease recidivism (rate of re-offending); if anything, prison sentences actually produce an increase in recidivism; discrediting the idea of specific deterrence. This data compels us to reassess the need to keep on increasing punishments to deter crimes, what more if those crimes are merely moral ones.

The logic behind all these data and examples are simple. A criminal would rarely think of the impending punishment behind his criminal act as he would be comforted by the fact that he would be able to escape the crime. A criminal doesn’t commit a crime thinking that he/she would get caught.

Even if that’s a part of his/her calculation of committing a crime, the difference between a five-year jail sentence with a 10-year jail sentence in the mind of a criminal is minimal. To them, five years is already bad for them. If five years won’t deter them, increasing the amount of punishment won’t do much justice.

This then compels us to reassess the need to increase punishment via the amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 which intends to increase punishments towards those who commit moral crimes.

If there’s no correlation between the degrees of punishment with the deterrence level, it’s best to stick to status quo. This is particularly pertinent for moral crimes like premarital sex and consumption of alcohol. These crimes are individual moral crimes which do not cause any direct third party harm, yet we’re punishing them disproportionately without actually deterring others from committing the same moral crime.

It might be popular to increase punishments as a quick-fix solution to a moral problem, however, if that quick-fix leads to further injustice, it’s best that we stay away from it.

SYED SADDIQ SYED ABDUL RAHMAN is a part-time lecturer at Universiti Islam Antarabangsa (UIA) Malaysia and is Asia’s best debater, winning the United Asia Debate Championship in May 2015.